Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1887-09-15

| my and convenience IN mind,
Now if tho Cherokee outlet remain
attached to the district of Arkan-
sas for jurisdictional purposes
there is long strip of territory
far removed from the place of
holding that court into which its
process must run, and further, this
same strip stands intermediate
between that portion assigned TO
the Kansas court and the place at
which that court is held With
this potent geographical fact be-
fore us we pass to an eSamina-
ton of the language of the section
and the significant words are these:
"That part Of the Indian Territory
lying north, etc, not set apart and
occupied by the Cherokee, Creek
and Seminole tribes"
Beyond the mere matter of ge-
ography there is a double descrip-
tion in this definition of territory
This is indicated by the two terms
"set apart" and occupied These
are Joined by the copulative and
not by the distinctive conjunction.
Both facts evidenced by these
words must exist TO exclude
the territory from the jur-
isdiction Of the Kansas court.
1t will not be assumed that either
term was superAuous, or that
some distinctive fact was not in
the mind of congress, in the use Of
each. A tract occupied but not set
apart would not be excluded. So
also as to tract set apart but not
occupied What were the facts
evidenced by these respective
terms? We 20 back to the treaty Of
1928; az u. 5. Stat. at large BID
the preamble Of that treaty recitos;
Whereas, it being the anxious de-
sire Of the government OF the Unit
ed States TO secure to the Cherokee
nation Of Indians q permanent
home, etc" Article two then
reads: "The United States agree
TO possess the Cherokee nation and
TO guarantee il to them forever,
and that guarantee is here solemn
| ly pledged, Of seven million of
acres of land to be bounded as fol-
lows ~ Then follows a descrip
I ton by mctcs and bounds of the
tract above indicated of seven
million of acres. Then in the
same article are these words: In
addition TO the seven millions of
acres thus provided for and bound
ed, the United States further
guarantees to the Cherokee nation q
| perpetual outlet rsf, and free
and unmolestcd use ofall the coun-
! try lying west OF the western boun-
/ dairy of the above described limits
and as far west as the sovereignty
of the United States aud their
right of soil extends. - The treaty
of February nth. 1893. Il L. :.
Stat. at large Iill, rcitcrates the
same grants, attaches to the pro-
vision quoted for outlet etc, pro-
viso, If the Saline or Salt Plain
on the great western prairie shall
fall within said limits, the right is
reserved to the United States to
permit other tribes Of red men to
get salt on said plain i'm common
with the ChcrOkecs. " And also
that letters patent shall be issued
as soon a. practicable for the land
$50 guaranteed Subsequent treaties
have reduced the boundries OF
this seven million tract and also
provided for cas-iOus of some por-
tions OF the territory west to other
tribes. In pursuance of this origi-
nal treaty. patent was issued for all
the lands including the outlet
west. No distinction was made in
the granting clause between the
seven million tract and the outlet
west. Now, Is this outlet, within
the meaning of the act Of 1853.
"set apart and occupied by the
Cherokee nation That it was set
apart to that nation is evident, but
was it occupied ? Doubtless in Il
certain sense it was occupied, be-
cause the Cherokee nation had
title to possess it, but if congress
had meant by this TO include all
land owned by the Chorokees the
words "sct apart would have
been ample and the word "occupi-
ed' was superluous, obviously
some distinctive matter was in
tended TO be expressed by the use
Of that word. The significance OF
il is evident from the language Of
the proyiso in article two, hereto
fore quoted. Nanifcstly congress
set apart that seven million acres n
a home, and that was thereafter TO
he regarded as set apart and occu-
pied. "bcc0use rs expressed in the
preamble ofthe treaty." congress
vas intent upon securing "a per
mancnt home" Bey0n 4 that the
guarantee was Of an outlet, u0ttcr-
ritOry for residence but for passage .
ground over which the Cherokee
might pass 10 all the unoccupied .
domains west. But while the ex- /
elusive right 10 this outlet was .
guaranteed, while patent was is /
sued conveying this outlet. 10 was /
described and intended. obviously, /
AZ an outlet and not as a home
So what ever rights of property
the Cherokee may have in this
outlet it was not territory set
apart ior q home and is not terri
try within the language Of the act
Of 1888, both SET apart and occa-
pied by the Cherokee tribe. I
think therefore that the district
court Of Kansas had jurisdiction